In the ongoing story of the death of a ride operator at Rye's Playland amusement park, the state labor department concluded that another rider operator was at fault, reports the local paper, via Turkewitz. The report does not appear to be on the labor department's website.

The paper reports:

A state report on the death this summer of 21-year-old Gabriela Garin on the Mind Scrambler at Playland accuses the ride's teenage operator of starting the ride even though he knew the victim was not properly seated.

The report, which was released late yesterday afternoon by the state Labor Department, also slams the ride's owner, S&L Amusements, for providing inadequate training to its employees and not ensuring that the ride, especially a secondary operations booth, was properly staffed.

"The ride operator failed to properly operate the ride," said Leo Rosales, a spokesman for the Labor Department. "He turned on the ride when there was obviously somebody not seated properly."

As reported on WSJ Law Blog, Dickie Scruggs has hired John Keker to defend him in the pending criminal contempt proceeding. (Prior posts on this topic here and here). Keker has filed a petition with the Eleventh Circuit seeking dismissal of the contempt charges.

The FDA has announced a new study on whether visuals in drug advertising distract consumers from understanding the risks. The announcement, on the FDA's website, proposes a one-time study about the perceived riskiness of a drug based on its advertising. As Business Week reports (via AP), among industrialized countries, only the United States and New Zealand allow television drug advertising.

As school starts up again, many Torts profs will be encountering students whose initial reaction to the tort suit is ""Hey, like that lady who made millions from hot coffee!" (Indeed, at orientation yesterday, I said that I suspected I could predict what a substantial percentage of students' reactions to the term "Torts" would be. I was right.)

Mississippi trial lawyers Dickie Scruggs has been charged with criminal contempt relating to the handling of documents in suits relating to insurance coverage disputes as to Hurricane Katrina damage. Follow the link for much, much more.

I won't try to capture all of the posts about the recent lawsuit against PZ Myers, author of the terrific Pharyngula blog on the ScienceBlogs network. The short version is that an author, displeased by Myers's writings about his book, has sued Myers for libel. (Unless there's something more than I've seen, it's a silly case.)

On Friday, the United States Court of Appeals for the Third Circuit affirmed the dismissal with prejudice of a putative class action against Zeneca alleging that the company's advertising of the drug Nexium was deceptive: Pennsylvania Employees Benefit Trust Fund v. Zeneca, Inc. The Third Circuit ruled that the Food Drug & Cosmetic Act and the FDA's accompanying regulations on drug labeling preempted state law consumer fraud claims:

By specifically excluding advertisements covered by 21 U.S.C. Sec. 352(n)and the regulations promulgated thereunder from the scope of 15 U.S.C. sec. 52, Congress signaled its intent to give the FDA exclusive authority to regulate prescription drug advertising. The FDA has established specific regulations regarding such advertising. To allow generalized consumer fraud laws to dictate the parameters of false and misleading advertising in the prescription drug context would pose an undue obstacle to both Congress's and the FDA's objectives in protecting the nation's prescription drug users. Accordingly, the state consumer fraud laws are preempted by the extensive federal legislative and regulatory framework.

The Minneapolis Strib has a story on some Minnesota firms offering free services to potential plaintiffs affected by the Minnesota bridge collapse.

The Minneapolis law firm responsible for winning a record settlement
against Big Tobacco almost a decade ago is among a consortium of Twin
Cities firms offering free legal services to the victims of the
Interstate 35W bridge collapse.

"We
have the resources to do what is right," said Chris Messerly, a partner
at Robins, Kaplan, Miller & Ciresi. Messerly said the firm already
represents the Mora, Minn., family of construction worker Greg (Jolly)
Jolstad, the only victim whose remains have yet to be recovered.

By coincidence (?) named RKMC partner Michael Ciresi is running for U.S. Senate against Norm Coleman. Some firms have clients on contingency as well.

--BC

(who worked on Paul Wellstone's first campaign and will contribute to whoever gets nominated against Coleman, in case it's relevant)

The St. Louis Post-Dispatch reports that Ann Callis, the new Chief Judge of Madison County, Illiniois, has been working hard to change the jurisdiction's "judicial hellhole" image.

"We were all painted with the same brush, which can be unfair," Ann Callis said. "But we had the label (of a judicial hellhole). We had it. So it was getting out from under it and doing things, real changes."

High atop Callis' agenda was a limitation on the substitution of judges in class action cases. State statute allows attorneys to swap a judge once per named party in a lawsuit — both on the plaintiff's side and the defense. But Callis said some plaintiffs attorneys in class action cases were engaged in "blatant forum shopping" — adding more named parties to rack up more judge change options.

In response, she and the other circuit judges adopted a rule treating the entire class as one party, effectively meaning that plaintiff's attorneys get only one change of judge per class action. Class action attorneys balked, and the prominent St. Louis firm Korein Tillery has challenged the rule as unconstitutional.

The New York Times reports that the Bush Administration has set new income policies for the Children's Health Insurance Program (prior posts here, here and here).

The poverty level for a family of four is set by the federal government at $20,650 in annual income. Many states have received federal permission to cover children with family incomes exceeding twice the poverty level — $41,300 for a family of four. In New York, which covers children up to 250 percent of the poverty level, the Legislature has passed a bill that would raise the limit to 400 percent— $82,600 for a family of four — but the change is subject to federal approval.

California wants to increase its income limit to 300 percent of the poverty level, from 250 percent. Pennsylvania recently raised its limit to 300 percent, from 200 percent. New Jersey has had a limit of 350 percent for more than five years.

. . .

The new Bush Administration policy essentially prohibits such adjustments. Under the new Bush Administration policy, states must show that they have “enrolled at least 95 percent of children in the state below 200 percent of the federal poverty level” who are eligible for either Medicaid or the child health program before making such changes to the poverty level limit. According to deputy New York State Health Department Commissioner Deborah S. Bachrach, “No state in the nation has a participation rate of 95 percent.”

And Cindy Mann, a research professor at the Health Policy Institute of Georgetown University, said, “No state would ever achieve that level of participation under the president’s budget proposals.”

That's the main message in a story today relating to wrongful death suits arising out of the crash of a Comair airplane in Kentucky a year ago. The story suggests that liability is almost certain (which seems likely, if the facts as alleged are true), and focuses on punitive damages. The story does a better-than-average job of discussing the various procedural issues involved as well.

In news you may have missed, the Legal Times (via Law.com) reported that Roy Pearson filed an appeal last week with the D.C. Court of Appeals. Following a two day bench trial, the trial court rejected Pearson's $54 million suit against his former dry cleaner over a pair of allegedly lost pants.

(Thanks to Overlawyered. Ted Frank notes that the "D.C. Court of Appeals' average time for appeal is 575 days, implying a wait until 2009 for a decision.").

Last week, Judge Eldon Fallon (the Louisiana district judge overseeing the Vioxx MDL) rejected Merck's assertion of attorney-client privilege, and ordered Merck to start producing documents. A copy of the comprehensive opinion is available here.

Merck had argued that "because the drug industry is so heavily regulated by the FDA, virtually everything a member of the industry does carries potential legal problems vis-a-vis government regulators." (Op. at 18). The district court, adopting the Special Master's Report (prepared by Paul Rice (American)), rejected this argument:

Without question, the pervasive nature of governmental regulation is a factor that must be taken into account when assessing whether the work of the in-house attorneys in the drug industry constitutes legal advice, but those drug companies cannot reasonably conclude from the fact of pervasive regulation that virtually everything sent to the legal department, or in which the legal department is involved, will automatically be protected by the attorney-client privilege. While such an argument is intriguing because it would minimize the time and expense involved in both corporations asserting and documenting privilege and judges ruling upon those claims, the theory is unrealistic.

Accepting such a theory would effectively immunize most of the industry's internal communications because most drug companies are probably structured like Merck where virtually every communication leaving the company has to go through the legal department for review, comment, and approval. The fact that the industry is so pervasively regulated does not justify dispensing with each company's burden of persuasion on the elements of attorney-client privilege. . .